Dr. W was in the middle of a well-deserved dinner with his wife and two teenage children when he was interrupted by a call from his service.

“This is Mary, from your service,” announced the caller. “A Mrs. Q is calling. Her husband was released from the hospital today, but she reports that he has a 102.7˚ fever with persistent cough. She wants to know if he should go back to the hospital.”

Dr. W thought for a moment. The patient, Mr. Q, 67, was suffering from prostate cancer and had been in the hospital for a radical prostatectomy. The procedure, which Dr. W performed, had gone smoothly. Dr. W had checked on the patient several times after the operation to make sure the site was healing properly, and it was.

On the first day post-op, Dr. W recalled that the patient developed an intermittent fever, some abnormal lung sounds, and coughing, but the urologist had relied on the nursing staff to keep an eye on that. He was focusing on the part for which he was responsible.

“Mary,” the physician replied, “please tell Mrs. Q to call the chief resident at the hospital, and he’ll tell her what to do.” Dr. W hung up and went back to dinner.

Meanwhile, Mr. Q’s wife was getting anxious. Her husband’s fever was inching towards 103˚ and his cough was not abating. She called the chief resident, Dr. R, and asked if she should bring her husband back to the hospital.

“I wouldn’t do that,” Dr. R replied. “These symptoms aren’t unusual post-surgery, and he’ll be more comfortable at home rather than sitting around all night in the emergency room. You can give him some Tylenol for the fever.”

Dr. R remembered the patient, who had been released from the hospital earlier that day. He recalled that the nurses had reported some intermittent abnormal symptoms during his stay at the hospital, but Dr. R did not feel overly concerned.

The patient’s wife followed the physician’s directions and did not bring her husband to the hospital that evening. The next morning though, in addition to the fever and cough, Mr. Q was noticeably short of breath. He was readmitted to the hospital with severe respiratory distress and was eventually diagnosed with acute respiratory distress syndrome. Mr. Q was intubated and died following a three-week hospitalization.   

Mrs. Q, his wife of 45 years, was heartbroken. Eventually her pain turned to anger, and she consulted a plaintiff’s attorney who obtained a copy of the hospital records and had them reviewed by a consulting physician. “It sounds like pneumonia to me,” the physician said. “They only ran the white blood count (WBC) once, and it was elevated. They should have checked it again before releasing him.

Plus, apparently neither the urologist nor the resident ever checked this man’s lungs, although he was coughing and, according to the nurses, had abnormal lung sounds periodically. It shouldn’t have been ignored.”

The attorney agreed to take the case, and filed a malpractice lawsuit against Dr. W and Dr. R. The two doctors met with their defense attorneys and maintained that Mr. Q’s condition was post-surgical atelectasis. In addition, the physicians told the attorneys, Mr. Q’s prognosis was quite poor due to the spread of his cancer; he likely did not have much time left anyway.

The case progressed to trial, starting off with the plaintiff introducing expert testimony from several physicians discussing the standard of care post-surgery. The experts opined that if a patient’s WBC count was elevated one day post-op, the test should be repeated before the patient is released from the hospital. They stated that any abnormal chest sounds, or persistent coughing, warranted a thorough check of the lungs, and they confirmed that Mr. Q’s symptoms were consistent with pneumonia.

Mr. Q’s wife tearfully testified about their life together and how they both had expected to travel and explore the world during their retirement. The defense introduced the testimony of a urologist who testified that the patient’s cancer was such that his life expectancy was short due to metastasis to other parts of his body.

The defense attorney also introduced an expert who opined that the patient had likely been suffering from atelectasis rather than pneumonia. While the jury was in deliberations, the parties decided to settle rather than rely on the jury verdict. The case was settled for $2.5 million.